The Question of Admissibility of the Destruction of a Civil Aircraft Used as an Implement in a Terrorist Attack

Admissibility of the decision of shooting down a civil aircraft posing

a potential threat of a terrorist attack has been high on global legal agen-55 Act of 9 June 2006 on the Central Anticorruption Bureau (JL No. 104, item 708 as amended).

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das due to the modus operandi used by the perpetrators of the 9/11 attacks in the United States. The introduction of such legal measures has been strongly countered by the uniform approach adopted in international law, whose regulations provide an enhanced protection for aircraft. The obliga-tion to “refrain from resorting to the use of weapons against civil aircraft in flight,” and that, “in case of interception, the lives of persons on board and the safety of aircraft must not be endangered,” is clearly worded in the provision of Article 3bis of the Convention on International Civil Avia-tion, adopted in Chicago on 7 December 1944,⁵⁶ with its amending Proto-col, done at Montreal on 10 May 1984.⁵⁷ The non-use of weapons against civil aircraft is also regarded as the norm of customary international law.⁵⁸ However, the events of 11 September 2001, in which the aircraft (including all passengers and crew on board) became the means of attack, and not, as before, the object of attack, have led to the revision of this standpoint.

In Poland, the legal regulations concerning the rules of procedure in the event of a terrorist threat caused by the use of a civil aircraft were in-troduced by the Act of 2 July 2004 amending the Act on the protection of the state border and other selected acts.⁵⁹ The new provision of Article 122a of the Act of 3 July 2002 – Aviation Law stipulated the option of destroy-ing a civil aircraft if so required by the state security considerations, and if the air defence command authority, having analysed the information provided by the state air traffic control body, concluded that the aircraft is being used to achieve unlawful objectives, in particular as a means of a ter-rorist attack. The decision to destroy that civil aircraft fell to the Minister of National Defence. The detailed rules of procedure in such cases are set out in the provisions of Article 18b of the Act of 12 October 1990 on the protec-tion of the state border, in conjunction with the Regulation of the Council of Ministers of 14 December 2004 on the procedure of using air defence against alien aircraft not complying with the calls from the state air traf-fic management body.⁶⁰ The originators of the introduced solutions justi-fied them by the desire to be able to respond to the potential threat from air attacks of the size similar to those of 11 September 2001 in the United States, and directed against targets located on the territory of Poland. In

56 JL of 1959, No. 35, item 212 as amended.

57 Protocol relating to the Amendment to the Convention on International Civil Aviation, done at Montreal on 10 May 1984 (JL of 2000, No. 39, item 446).

58  Barcik, J., Czech, P. „Czy można zestrzelić samolot cywilny? (kontrowersje na tle pol-skiego prawa lotniczego),” PKom 3 (2008), p. 29.

59 JL No. 172, item 1805.

60 JL No. 279, item 2757.

 The Circumstances Excluding Criminal Liability the course of legislative work, there was also the argument of “lesser evil”

raised, intended to legitimize the decision to take lives of those on board by highlighting the possible consequences of a successful terrorist attack.

Compatibility of Article 122a of the Aviation Law with the Polish Con-stitution was challenged by the First President of the Supreme Court who referred the issue to the Constitutional Court in a motion dated 27 Septem-ber 2007.⁶¹ He alleged that in order to allow the deprivation of the lives of those on board the aircraft, the legislator referred only to a very abstract notion of “state security” without specifying the actual threat. Therefore, he permitted the sacrifice of human life to protect the legal interests of lower value. The shooting down of a civil aircraft was not combined with the existence of a direct threat to such legal interests. The president also objected to the introduction of a legal norm granting a public administra-tive body “very broadly defined powers to intentionally cause the death of the passengers of a civil aircraft (not being the aggressors) to protect the lives of other people.”⁶² Due to the fact that the description of the condi-tions of making the decision on the destruction of an aircraft was marked by a great deal of uncertainty and risk of an incorrect identification of the actual degree of danger, an objection was raised on the violation of the principle of necessity (to ensure state security) and insufficient iden-tification under the provision of Article 122a of the Aviation Law. Some reservations were also made to the assessment of the enacted regulations in the light of the principle of proportionality, which authorizes public authorities to limit the rights or freedoms of another person exclusively to protect an interest of higher value. These criteria were not met in the case of causing death of innocent passengers and crew on board the aircraft in order to save other people’s lives. The First President of the SC objected to the valuation of human life according to the quantitative criterion or chances of survival. Finally, granting public authorities the power to shoot down a civil aircraft was construed as depriving the passengers on board of legal protection. By making the passengers “the objects of a rescue op- eration,” the legislator was seen as admitting the violation of human dig-nity, which is inalienable and inviolable (Article 30 of the Constitution of the Republic of Poland). The motion of the First President of the SC ended

61 „Motion for the Examination of the Constitutionality of Article 122a of the Act of 3 July 2003 the Aviation Law,” BSA II – 4111 – 1/07, Warszawa 27.09.2007; Polish text available at:

www.edukacjaprawnicza.pl/images/files/wniosekpierwszegoprezesasadunajwyzszegoprawol-otnicze.pdf.

62 Ibidem, pp. 6-7.

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with a firm statement recapping on the raised objections: “In a democratic state ruled by law, whose axiological foundation lies the inviolable and inalienable human dignity, it is not acceptable to equip public authorities with the right to decide about an intentional causing of the death of in-nocent people in order to protect the common good, state security or even the lives of others.”⁶³

In its decision of 30 September 2008,⁶⁴ the CT focused on the allega- tions concerning the compatibility of adopted regulations with the con-stitutional guarantees of the legal protection of human life and human dignity. Analysing the problem of a state’s obligation to ensure the legal protection of every human life, the CT referred to the standards adopted in the prior verdict dated 28 May 1997,⁶⁵ in which the decision was rested on the following arguments:

1. a democratic state ruled by law exists only as a community of people, 2. an essential attribute of man is his life,

3. the first directive derived from the essentially democratically estab-lished law must be the respect of the value of human life,

4. the value of human life cannot be diversified,

5. the duty of the legislator is to prohibit the violation of life and establish legal measures to ensure a satisfactory compliance with this prohibition,

6. protection of life is not absolute – the legislator may provide for exceptions which allow for the sacrifice of one of the conflicting legal in-terests; still, he cannot entirely dispense with the protection of such legal interests, but is obliged to offer them “adequate protection.”

Based on such grounds, the CT found that the provision of Article 122a of the Aviation Law violates the constitutional standard of the legal pro- tection of the right to life and the conditions of admissibility of its limita-tions. The tribunal pointed out the failure to comply with the statutory requirements governing such regulations, as well as challenging its neces-sity for protecting endangered legal interests, since, under the act, human life could potentially be sacrificed to save, for example, elements of the infrastructure.⁶⁶ Also noteworthy is the tribunal’s justification for the deci-sion, namely “it is the right of every person, including the passengers on board an aircraft in the airspace of the State, to have their lives protected by this State. The State’s claiming the right to kill them, even in defence of

63 Ibidem, p. 10.

64 Decision of CT of 30 September 2008, K 44/07, JDCT 7A (2008), item 126.

65 Decision of CT of 28 May 1997, K 26/96, JDCT 2 (1997), item 19.

66 Decision of CT of 30 September 2008, K 44/07, JDCT 7A (2008), item 126, p, 31.

 The Circumstances Excluding Criminal Liability the lives of others, is a denial of this right.”⁶⁷ In addition, the solution ad- opted in Articles 122a of the Aviation Law was recognized as violating hu- man dignity. In the CT’s opinion, if made effective, the provision in ques-tion would “depersonify” the passengers and crewmembers on board, i.e.

the persons who are not aggressors and who would become no more than

“the objects (subjects) of the rescue operation.”⁶⁸

Therefore, the Constitutional Tribunal objected to the formulation of procedural conditions authorizing the decision on the destruction of a civil aircraft, resulting in the death of innocent people on board, and to treating it as “a standard legal instrument.” At the same time, however, it confirmed that “the law may exceptionally decriminalize the conse-quences of such conduct, deeming the acting person not guilty.”⁶⁹ Seeking answers to the question of admissible response to the threat of a terrorist attack undertaken with an aircraft, the CT held that its destruction was admissible if it were an ultima ratio measure and there were only assas-sins on board.⁷⁰ The CT’s verdict clearly indicated that the elimination of the provision found to be incompatible with the Constitution of the Republic of Poland does not create a legal loophole, since there is an op-tion of assessing the act in question as taken out of higher necessity, or – if there are only assassins on board – in necessary self-defence. It should be emphasized that the CT expressly admitted the application of both institutions of the general part of the Penal Code excluding criminal li- ability of “a state authority (or a person serving as that body)” by requir-ing such an authority to make “an individual decision allowing for all the circumstances of the particular situation and to assume responsibility for its consequences.”

The CT’s decision of 30 September 2008 should be highlighted as most desirable in that they rendered the unconstitutional provisions ineffective and provided firm arguments contained in the justification. Resting their decision on the principle of the legal protection of life and human dignity, the CT appealed to axiology underlying a democratic state ruled by law.

This axiology entails some important limitations to the state’s activity that should be respected in all circumstances, including the threat of terror-ism. It is unacceptable in the first place to judge the value of human life, in

neither quantitative nor qualitative terms. In addition, it is pivotal to ex-67 Ibidem, p. 31.

68 Ibidem, p. 34.

69 Ibidem, p. 35.

70 See ibidem, p. 32.

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clude the ex ante definition of circumstances permitting state authorities to kill a citizen and consequently legitimizing such activities. The conviction contained in the verdict should also be advocated that “just as it is pos-sible to fight organized crime, or even wage a regular war without general denial or suspension of fundamental rights and freedoms of citizens, it is also possible to combat terrorism without such a deep interference in the fundamental right of an outsider, the right to life.”⁷¹

The CT’s verdict of 30 September 2008 is aligned with the case law of the ECHR, which, following the provisions of Article 2 of the Convention on Human Rights, is very strict in construing the premises of legality of deprivation of life, and this assessment is not shaken by the circumstances arising from the threat of terrorism. Its arguments clearly refer to the the-sis expressed in the verdict of the German Federal Constitutional Court of 15 February 2006.⁷² This decision, like the judgement of the Polish Con-stitutional Tribunal, was based on the recognition of the violation of the principle of protection of human life and dignity.⁷³

3.3. Legalization of Torture with a View to Preventing the Threat